Smarter Enforcement, More Targeted Measures

Immigration Priorities in 2011

The president’s State of the Union speech provides an opportunity to reaffirm the administration’s commitment to making our immigration system live up to our nation’s heritage and core values.

The recession has devastated the nation’s workforce and savings. The federal government’s top domestic priority for the foreseeable future will undoubtedly be job creation and economic growth. Comprehensive reform of our immigration system would advance those objectives, and it must remain a priority of this administration. Indeed, comprehensive immigration reform that legalizes the current undocumented population and reforms our legal immigration system would add $1.5 trillion in cumulative gross domestic product to the nation’s economy over 10 years.

House and Senate Republican leaders, however, have signaled unwillingness to consider and debate a systemwide overhaul. That’s why we recommend that the administration pursue a modified set of legislative and administrative priorities. The following recommendations are achievable and would bring urgently needed coherence and integrity to our nation’s immigration policies:

Collaborate with the Senate to advance targeted legislative reforms

Reassert federal primacy over immigration policy

Make immigration enforcement smarter and more targeted

Collaborate with the Senate on targeted legislative reforms

The near-term viability of a comprehensive legislative overhaul has diminished in light of congressional Republicans’ public posture. But more targeted reforms that solve core problems should be debated and could be passed. Effective enforcement is obviously critical to the integrity of the system. The failure of “enforcement-only” strategies over the last 20 years, however, convincingly demonstrates that we can not enforce our way to lasting solutions.

Employment verification and border security plus legalization

The reform package that would make the greatest immediate strides in strengthening the nation’s immigration system includes a combination of employment verification and border security measures plus a program to require undocumented workers to earn legal status.

Senate Republicans have called for more border security resources before addressing the undocumented population. But annual spending on border enforcement has increased by more than 700 percent since 1992 and the number of border patrol agents has quadrupled. Meanwhile the number of undocumented immigrants in the United States has tripled to approximately 11 million during that same time period. Border security measures alone clearly will not solve the problem though continued enhancements to ongoing border enforcement strategies must remain a priority.

House Republicans, for their part, argue that the silver bullet to ending illegal immigration is to mandate that all employers use an electronic employment verification system to determine work eligibility. That system, though, which is currently voluntary and called “E-verify,” will not lead to the removal of 7 million workers. Five percent of the nation’s workforce lacks authorization to work, and mandatory employment verification will simply drive more employment off the books. That means depressed wages for U.S. workers and more exploitation. It will also incentivize more identity theft since the E-verify system only confirms that the data presented to the employer is for an authorized worker. It does not verify that the data relates to the person presenting.

In other words, mandatory E-verify without reform is a trifecta loser. Taxpayers lose because more employers and workers will fuel the underground economy costing the country $17 billion. U.S. workers lose because exploitive employers have more leverage to depress wages. And the public at large loses because the problems related to unauthorized employment get worse, not better.

The solution therefore lies in coupling mandatory electronic verification and continued border security enhancements with a requirement that undocumented workers register, pay taxes, learn English, and earn legal status. This pairing of measures—enforcement reform plus a realistic strategy for the 11 million undocumented—has broad national support, would address public concerns about everyone paying their fair share of taxes, help restore the rule of law, raise wages and working conditions for all workers, and lower social tensions that surface when a segment of the population is pushed to the margins.

The administration should challenge the proponents of “enforcement-first” strategies, especially legislators who previously championed comprehensive immigration reform such as Sens. John Kyl (R-AZ) and John McCain (R-AZ), and encourage them to come to the negotiating table. If House Republicans are serious about enhancing worksite enforcement and stopping illegal immigration this is a targeted package that they would be wise to consider.

Reassert federal primacy over immigration policy

The federal government’s political gridlock over immigration reform has caused the locus of the debate to shift to the states. Many states have expressed their frustration by considering, and in some cases passing, state-based laws attempting to regulate immigration policy. But a state-by-state patchwork of immigration laws is untenable and will only make a broken system worse.

Not even the most vocal proponents of such measures argue that state-based initiatives will actually solve the problem of illegal immigration. Public support for these state measures is a function of the public’s appetite for action in the face of congressional paralysis. Understandably, the basic attitude is: “At least they are doing something.” But what Americans ultimately want is results, not action for action’s sake. That means that they want the problem solved, not demagogued.

Since only the federal government can adequately address this issue, it is imperative for Congress to quit playing politics and find common ground. The alternative is a dangerous deepening of regional divisions and a further rending of our national cohesion.

The administration has taken an aggressive stance in challenging these state forays into the immigration policy arena. As it pursues the legislative and administrative reforms outlined above and below, it will need to continue working with states to address their legitimate concerns while blocking legislation that attempts to usurp federal authority.

Make immigration enforcement smarter and more targeted

In the context of a badly broken system it is grossly simplistic and irresponsible to declare that the solution to our problems is for the Department of Homeland Security to “just enforce the law.” Every law enforcement agency, including those operating within the confines of well-functioning systems, must prioritize its efforts. Indeed, the exercise of discretion is more than a miscellaneous executive branch power. It is a significant responsibility that enables the government to advance the nation’s highest interests.

The administration must build on its efforts to make current enforcement strategies smarter, better prioritized, more humane, and more economical. DHS has made important strides in directing the focus of its interior enforcement efforts to individuals who pose a threat to our communities. But much work remains in the effort to prioritize the identification and removal of individuals who have committed serious crimes and threaten our collective security. And the administration must not shy from exercising its discretionary authority to promote the nation’s interest in an effective, just, and humane system.

Midterm enforcement audit

We recommend that DHS prepare a midterm audit of current enforcement practices to increase transparency about the extent and effectiveness of the border and interior enforcement programs that have been implemented. We suggest that the agency publish an analysis comparing the current status of immigration enforcement to the goals set out by DHS after the secretary’s original enforcement review in 200 as well as to the enforcement benchmarks that were set forth in the 2007 reform legislation.

This audit should give confidence to the American public and skeptical legislators that the administration is deeply committed to effective enforcement and that the legislative reforms proposed above can be embraced.

“Secure Communities” reassessment

Additionally, we specifically recommend that DHS do a careful and transparent review of the “Secure Communities” program before it continues to be aggressively rolled out across the country. The laudable stated goal of focusing enforcement resources on individuals who have committed serious crimes must be matched with requirements that ensure the program cannot be utilized as a pretext for profiling. Only individuals arrested for and charged with serious crimes should be subject to the program’s checks. When those parameters are breached so is the trust of the community served.

Detention reform

We also urge the president to issue an executive order delineating priorities related to civil detention. The massive increase in the practice of jailing noncriminal immigrants is costly and unnecessary. The limited purpose of immigration detention is to ensure compliance with the removal process. But there are highly effective, less restrictive, and more economical means of ensuring that individuals appear at their hearings or their removal.

Electronic monitoring via ankle bracelets, for example, is being used successfully in a variety of jurisdictions in lieu of jail. Partnerships with community-based organizations that make them accountable for ensuring that immigrants appear at their hearings have also been successfully piloted.

But DHS has defaulted to the use of detention for individuals placed in proceeding despite the availability of these cost-effective measures. That growth has led to numerous documented rights violations, scores of deaths, unnecessary family separation, and lost productivity.

The president should issue an executive order requiring all civil immigration detentions to be based on an individualized assessment of whether the immigrant is a flight risk or threat to community safety. The order should explicitly clarify that:

The Department of Homeland Security will continue its policies of aggressively pursuing enforcement that targets unauthorized immigrants with criminal records including detention and eventual removal from the United States.

In the case of noncriminal unauthorized immigrants in DHS custody detention should be the practice of last resort. When detention is warranted the agency will adopt alternatives that are in the least restrictive setting possible based on the risk assessment.

A presumption of release on recognizance will attach for defined vulnerable populations such as minors, sick people, and the elderly.

The Legal Orientation Program that provides detained immigrants with information about their rights will be expanded to operate nationwide in all immigration detention facilities.

The administration will build confidence that tough, fair, and practical immigration reform is achievable by spotlighting the breadth and seriousness of current enforcement efforts and taking concrete steps to ensure that resources are being deployed in the most effective, humane, and economical fashion.

Conclusion

Undocumented immigration to the United States has dropped precipitously as a result of the recession. That diminished pressure on the border offers breathing room to rationalize our immigration policies and implement the legislative and administrative reforms recommended above. Yet despite reduced pressures on the border, political tensions around the issue have taken root in state houses across the country, making federal intervention imperative. The conditions on the ground are right to execute an overhaul of the system and the politics demand that the issue be tackled.

The president’s State of the Union speech provides an opportunity to remind the nation that our broken immigration system can and must be fixed. Taking the steps outlined above over the next two years will promote economic growth, restore the rule of law, and enhance national unity.

Marshall Fitz is Director for Immigration Policy and Angela Kelley is Vice President for Immigration Policy at American Progress.